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Full-Text Articles in Law
Marbury Versus Madison: Documents And Commentary, Mark Graber, Michael Perhac
Marbury Versus Madison: Documents And Commentary, Mark Graber, Michael Perhac
Mark Graber
Marbury versus Madison combines documents and analytical essays timed for the bicentennial year (2003) of one of the most important Supreme Court cases. This timely collection will explain: the constitutional, political, philosophical background to judicial review the historical record leading to this landmark case the impact of the decision since 1803 its impact on the world stage, especially for new and emerging democratic nations. Also includes a listing of all the Supreme Court cases citing Marbury an an annotated Marbury v. Madison.
The Countermajoritarian Difficulty: From Courts To Congress To Constitutional Order, Mark A. Graber
The Countermajoritarian Difficulty: From Courts To Congress To Constitutional Order, Mark A. Graber
Mark Graber
This review documents how scholarly concern with democratic deficits in American constitutionalism has shifted from the courts to electoral institutions. Prominent political scientists are increasingly rejecting the countermajoritarian difficulty as the proper framework for studying and evaluating judicial power. Political scientists, who study Congress and the presidency, however, have recently emphasized countermajoritarian difficulties with electoral institutions. Realistic normative appraisals of American political institutions, this emerging literature on constitutional politics in the United States maintains, should begin by postulating a set of democratic and constitutional goods, determine the extent to which American institutions as a whole are delivering those goods, and …
James Buchanan As Savior? Judicial Power, Political Fragmentation, And The Failed 1831 Repeal Of Section 25, Mark Graber
James Buchanan As Savior? Judicial Power, Political Fragmentation, And The Failed 1831 Repeal Of Section 25, Mark Graber
Mark Graber
James Buchanan is often credited with being the unlikely savior of judicial review in early Jacksonian America. In 1831, Buchanan, then a representative from Pennsylvania, issued a minority report criticizing the proposed repeal of Section 25 of the Judiciary Act of 1789 that is generally credited with convincing a skeptical Congress that fundamental constitutional norms required federal judicial oversight of state courts and state legislatures. This paper claims that federalism and political fragmentation were more responsible than James Buchanan for the failed repeal of Section 25, for the maintenance of judicial power in the United States during the transition from …
The Jacksonian Makings Of The Taney Court, Mark A. Graber
The Jacksonian Makings Of The Taney Court, Mark A. Graber
Mark Graber
Many twentieth century commentators regard the willingness of Taney Court majorities to declare laws unconstitutional as proof that the justices on that tribunal adjured Jacksonian partisanship upon taking the bench. Old Republicans during the 1820s fulminated against judicial review of state legislation and sought to repeal Section 25 of the Judiciary Act of 1787, but they were apparently frustrated by a Taney Court which continued imposing contract clause and dormant commerce clause limits on state power. This paper demonstrates that Jacksonians in office supported judicial power. Jacksonian animus was more directed at McCulloch v. Maryland than either Marbury v. Madison …
Does It Really Matter? Conservative Courts In A Conservative Era, Mark A. Graber
Does It Really Matter? Conservative Courts In A Conservative Era, Mark A. Graber
Mark Graber
This essay explores the likelihood that conservative federal courts in the near future will be agents of conservative social change. In particular, the paper assesses whether conservative justices on some issues will support more conservative policies than conservative elected officials are presently willing to enact and whether such judicial decisions will influence public policy. My primary conclusion is that, as long as conservatives remain politically ascendant in the elected branches of government, the Roberts Court is likely to influence American politics at the margins. The new conservative judicial majority is likely to be more libertarian than conservative majorities in the …